seminar organised by the supreme administrative court of ... · seminar organised with the...

Seminar organised with the financial support of the European Commission

Seminar organised by the Supreme Administrative Court of Finland and by the ACA-Europe

"Recent case-law of the Court of Justice of the European Community and of the (supreme) administrative jurisdictions in connection with legal proceedings

relative to public contracts "

Helsinki, 22-23 October 2015

1. National jurisdictional organisation

1.1. What jurisdiction is responsible for application of procedures relative to recourse

(appeal) in connection with conclusion of public contracts falling within the field

of application of the directives?

1.1.1. Is it an administrative or civil or special jurisdiction, or a body of some

other nature?

A distinction is made between the civil (judicial) courts and the administrative court as a

function of the status of the awarding authority (1.1.1.) and as a function of the nature of the

recourse (1.1.2.).

● The Supreme Administrative Court (Council of State) hears – on initial or final jurisdiction –

appeals (for cancellation or suspension) aimed at decisions in connection with the award of

public contracts adopted:

- by the awarding authorities1 holding status as administrative authorities (in the meaning

of article 14 of the coordinated laws concerning the Council of State2);

- by certain public institutions (mentioned in article 14 of the coordinated laws concerning

the Council of State), which are not subject to the executive power: the legislative

assemblies and their organs, including the mediators, the Cour des comptes (Accounting Court), the Constitutional Court, the Council of State, the administrative jurisdictions, the

judicial power organs and the Higher Council of Justice.

● The civil jurisdictions (courts of first instance or commercial courts, courts of appeal and

Supreme Court of Appeals) hear appeals for cancellation and suspension aimed at the decisions

made by the other awarding powers.

Hence the notion of "administrative authority", a central consideration in Belgian administrative

contentious proceedings, is decisive for determination of the competent jurisdiction. The check

to be made on characterisation as "administrative authority" is up to the Supreme Court of

Appeals, which judges conflicts of jurisdiction.

According to the case-law of the Supreme Court of Appeals, "administrative authorities" are

limited to "the institutions created or recognised by the public authorities that are responsible

for carrying out a mission of general interest and which are legally empowered to make binding

decisions vis-a-vis third parties, i.e., are authorised to determine unilaterally its own obligation

vis-a-vis third parties or to determine unilaterally the obligations of the said third parties, within

the framework of the public power prerogatives" (Cass., 13 June 2013, C.12.0458.F).

1 Or the awarding entities, in the special sectors.

2 The exact title of which is: «laws concerning the Council of State, coordinated on 12 January 1973».


Thus, for instance, one characterises as administrative authorities public enterprises such as

Bpost, the National Lottery, the National Company of Belgium Railways, the public educational

institutions, the public hospitals … Hence the unilateral actions taken by the said enterprises and

institutions are subject to review by the Council of State.

On the other hand, the Council of State does not hold jurisdiction with respect to the decisions

made by the private educational institutions (even if recognised and subsidised by the public

authorities, by private clinics (subsidised), by private associations responsible for various public

service missions… The unilateral acts adopted by such legal entities in awarding their public

contracts are subject to review by the civil courts.

Implementation of the definition set forth by the Court of Appeals proves to be a tricky matter

when it is a question of characterising "hybrid" legal entities created solely or mainly by public

authorities, in the form of companies under private law, for carrying out public service missions.

One thinks, for instance, of the company responsible for managing the regional airport of

Charleroi (Brussels South Charleroi Airport).

1.1.2. Is there a division of roles between these jurisdictions (contentious

proceedings relative to the grounded decision? indemnification? declaration

of absence of effects? …?)

Yes.

● Only the Council of State is authorised to cancel or even suspend (if appropriate, by ordering

provisional measures) the unilateral decisions made by the administrative authorities, by the

institutions mentioned in article 14 of the coordinated laws concerning the Council of State. It

does not hold jurisdiction for hearing other types of recourse (even against the decisions

adopted by those same authorities and institutions).

● In addition to their jurisdiction relative to cancellation and suspension of the decisions made by the other institutions (cf. supra, 1.1.1.), the civil courts alone hold jurisdiction – whatever the status of the awarding authority may be – for declaring that a contract is ineffective or for ordering substitute sanctions (consisting of shortening the contract duration or imposing a financial penalty on the awarding authority). Likewise, only the civil courts hold jurisdiction for granting an award of damages based on civil liability under common law3 of the awarding authority (if the case arises, after the illegality has been sanctioned by a cancellation decision issued by the Council of State). ● However, the recent reform of the Council of State which went into effect on 1 July 2014,

allows the latter to grant a "compensatory indemnity", to be paid by the author of the act the

illegality of which is established by a decision, if the applicant or intervening party has suffered

prejudice because of the said illegality. Such an indemnity is granted "taking account of the

public and private interests involved". The filing of an application for a compensatory indemnity

with the Council of State excludes any action for civil liability filed in the civil courts (and vice

versa) – a fact that no doubt explains the tepid enthusiasm noted to date for this procedure.

3 Article 1382 of the Civil Code.


1.1.3. What is the exact role of the Supreme Administrative Court4 in connection

with contentious proceedings relative to public contracts (judge of

contentious proceedings in full, judge of setting aside a judgement for error

of law or procedure, judge of abuse of authority)?

The Council of State is the judge of abuse of authority. This corresponds to its general

jurisdiction relative to cancellation – and to suspension – of the unilateral administrative acts

carried out by the administrative authorities (and the other institutions mentioned in article 14

of the coordinated laws)5.

The law of 17 June 2013 relative to motivation, information and recourse in connection with

public procurement and certain contracts relative to work, supplies and services provides a

precise definition of the powers of the appeal court with respect to public contracts.

The judge’s role is defined in the same terms, whether the appeal body be the Council of State or

a civil court. Article 14 concerns recourse for cancellation, and article 15 concerns recourse for

suspension and the request for provisional measures.

Art. 14. At the request of any person having or having had an interest in obtaining a given contract and having been or who risks being injured by the alleged violation, the appeal court may cancel the decisions made by the awarding authorities, including the ones containing discriminatory technical, economic and financial specifications, on the ground that the said decisions constitute a misuse of powers or violate: 1° community law with respect to public procurement attributable to the contract in question, as well as legislation concerning public contracts; 2° the constitutional, legal or regulatory provisions as well as the general principles of law applicable to the contract in question; 3° the contract documents.

Art. 15. In the same conditions as the one mentioned in article 14, the appeal court may, in the presence of a serious argument or of an apparent illegality, without proof of a risk of serious prejudice that it would be difficult to offset having to be provided, in appropriate cases subject to a fine may suspend execution of the decisions mentioned in article 14 and, with respect to the Council of State, for as long as it remains applied to in connection with recourse for cancellation:

1° order the provisional measures for the purpose of correcting the alleged violation or preventing an attack on the interest in question; 2° order the provisional measures required for enforcement of its decision.

[…]

1.1.4. Does the breakdown between jurisdictions change with respect to the

proceedings for actions that are filed after conclusion of the contract?

No.

Conclusion of the contract has no effect on the breakdown of the powers between the Council of

State and the civil courts, with respect to recourse for suspension and for cancellation (the other

types of recourse, in any event, being subject to the sole jurisdiction of the civil judge).

4 The term Supreme Administrative Court refers to the jurisdictions that are members of the ACA and rule on final jurisdiction.

5 In this domain, the judicial courts applied to in connection with recourse for cancellation or for suspension also make their rulings as judges of abuse of authority, which is less common.


The Council of State retains jurisdiction for suspending and cancelling the award decision –

which is considered as a unilateral act that is "detachable" from the public procurement contract

– even after conclusion of the said contract.

However, we must point out that if the Council of State suspends the award decision while the

contract is already concluded without any violation of an obligation relative to delay, its decision

has no effect ipso jure on the contract (which could already be in the process of being carried

out). The candidate or the evicted bidder has the possibility, in this case, of filing a new action

with the civil judge (declaration of absence of effects, substitution sanctions or damages).

2. Duration of the legal proceedings

2.1. Are there specific means or procedures for making sure that the national

procedure applied is effective and rapid (for instance: specific deadlines for ruling

on the provisional measures, etc.)?

No deadline is specifically set.

With respect to matters other then public procurement, the coordinated laws concerning the

Council of State provide that the Council of State is to make its ruling within 45 days concerning

an application for a suspension known as "ordinary" (as against extremely urgent applications

for suspension).

In connection with legal proceedings concerning public procurement, the application for

suspension must, under penalty of inadmissibility, be filed in accordance with what is known as

the "extremely urgent" procedure. Hence the above-mentioned 45-day period is inapplicable.

The law of 17 June 2013, relative to motivation, information and appeals in connection with

public contracts […] provides however, that communication of the award decision giving

grounds suspends the period during which the bidders remain committed by their bids, for a

period that ends either at the time of expiration of the waiting period – if no application for

suspension (extremely urgent) is filed – or on the day of the decision ruling on the recourse for

suspension, and at the latest 45 days after communication of the contested decision.

In practise, the Council of State takes account of this maximum extension of the period of validity

of the bids in ruling, in good time, on the extremely urgent applications for suspension.


2.2. Can one determine the average time for handling public procurement cases? Do

you have any specific data by type of proceedings and by jurisdictional level

(court)? If so, what are they?

In case there are no statistics available concerning the average duration of that

kind of proceedings, would it be possible to have an average for the cases handled

by the Administrative Supreme Court?

These statistics are unavailable as concerns the judicial courts.

In the Council of State, the statistics are as follows:

Proceedings relative to "provisional measures" (including suspension)

Year of settlement

of the case

Number of

proceedings in

connection with

conclusion of public

contracts settled in

the Supreme

Administrative

Court during the

reference year

Average duration of the procedures settled every

year calculated in calendar days6

First instance7 On appeal Supreme

Administrative

Court – Court

of final

jurisdiction3

2013 232 / / 28 days

2014 242 / / 32 days

Trial on the merits (cancellation, declaration of ineffectiveness, indemnification,

etc.)

Year of settlement

of the case

Number of

proceedings in

connection with

conclusion of public

Average duration of the procedures settled every

year calculated in calendar days8

6 For the calculation, one must include the day on which the appeal is filed and the day on which the decision is issued.

7 If applicable

8 For the calculation, one must include the day on which the appeal is filed and the day on which the decision is issued.


contracts settled in

the Supreme

Administrative

Court during the

reference year

First instance9 On appeal Supreme

Administrative

Court – Court

of final

jurisdiction3

2013 161 / / 817 days

2014 196 / / 755 days

2.3. Can the parties to the contentious proceedings request a shortening of the period

for making the decision? If so, does it apply to all proceedings, or only to the

Administrative Supreme Court? If so, in what proportion do proceedings make use

of this possibility?

● Both in the Council of State and in the civil courts, the application for suspension (and, if the

case arises, for provisional of measures), filed within a period of two weeks beginning with the

time of publication of the communication or the time at which the contested decision becomes

known, as the case may be, is handled in accordance with the summary proceedings procedure

(known as "extremely urgent", in the Council of State).

The application for suspension (extremely urgent) is the quickest type of appeal and the most

effective one against the decisions made by the awarding authorities. In particular, it makes it

possible to thwart conclusion and execution of a public contract subject to a delay obligation.

It is not possible to request that the procedure be accelerated.

● Recourse for cancellation, filed within a period of 60 days beginning with the time of publication of the communication or of the time at which the contested decision becomes known, does not prevent continuation of the contract award proceedings, including conclusion of the contract. It does not constitute an obstacle to its execution by the winning bidder. In the Council of State, if the applicant has not filed its application for suspension within a period of two weeks, it is no longer possible to request accelerated proceedings or cancellation. However, if the "auditeur" (Junior Officer) responsible or handling the matter considers that the case is irrelevant or calls for only succinct discussion, he may file a report to that effect, which has the effect of speeding up the proceedings10. Moreover, if the cancellation proceedings follow a decision to suspend the contested act (or a decision ordering provisional measures), the matter enjoys priority and the decision must be handed down within a period of 6 months beginning with the time of the suspension decision (or of provisional measures)11. In the civil courts, the determination of periods for pleading makes it possible to speed up preparation of the case by the parties, but does not require any acceleration of case handling by the court (determination of the time for hearing arguments and for the decision).

9 If applicable

10 The hearing is set, without the parties’ having had an opportunity to file their last pleadings (article 93 of the Regent’s decision dated 23 August 1948 establishing the procedure in the administrative contentious proceedings section of the Council of State).

11 Article 17, § 5, of the coordinated laws concerning the Council of State.


● Application or declaration of absence of effect and application relative to substitution sanctions are always handled in accordance with the (civil) summary proceedings procedure. ● On the other hand, an application for damages is handled in accordance with the ordinary (civil) procedure. Theoretically the matter may be handled in summary proceedings, in urgent cases (which, however, will be difficult to demonstrate in the case of compensation for harm suffered). 3. Dialogue between the Supreme Administrative Court and the Court of Justice of

European Union

3.1. How many preliminary points of law put to the CJEU has your Supreme

Administrative Court submitted relative to public contracts?

Since the year 2000, the Council of State has submitted, in five cases12, one or several

preliminary points of law to the Court of Justice. Thus twelve questions relative to regulation of

public contracts13 have been asked.

Questions of principle are frequently put to the Council of State, on the occasion of extremely

urgent summary proceedings. But pursuant to established case law, extremely urgent summary

proceedings are incompatible with a commitment to the preliminary point of law procedure.

For a few years now the majority of cases relative to public procurement have been filed only on

an extremely urgent basis, or no longer give rise to cancellation proceedings carried out in toto.

Hence the Council of State does not have an opportunity to apply to the Court with respect to all

relevant questions that arise14.

● By two decisions dated 27 December 200215, the Council of State submitted preliminary points of law (3) relative to the compatibility with the European law of the exclusion – which is automatic – from the procedure relative to awarding a public contract for work, supplies or services of any person having been responsible for research, experimentation, study or development of such work, supplies or services. The Court responded to these questions by means of a decision called Fabricom S.A., dated 3 March 2005 (joined cases C-21/03 and C-34/03).

12 Six decisions were issued, but two of them concern related matters.

13 Furthermore a question relative to the application of the « in-house» case-law outside the field of application of regulation of public contracts (it was a question of management of the communal cable television distribution network assigned in the form of a concession to an intercommunal cooperative company) and was also put by a Council of State decision, No. 173.079, dated 3 July 2007, CODITEL. It gave rise to the C.J.E.U. decision dated 13 November 2008 (Case C-324/07).

14 For an illustration, in particular, decisions No. 221.540 dated 27 November 2012, N.V. CLEANLEASEFORTEX and No. 230.703, of 31 March 2015, N.V. CLEANLEASE, in which the Council of State, on an extremely urgent basis, dealt with the tricky question of implementation of the criteria of the «in-house» case-law.

15 Council of State, decision No. 114.149 of 27 December 2002, S.A. FABRICOM and Council of State decision No. 114.150 dated 27 December 2002, S.A. FABRICOM.


● By a decision dated 25 February 200416, the Council of State put questions (3) relative to the compatibility with European law of the conditions relative to admissibility of appeals to the Council of State requiring the members of a temporary association not enjoying legal personality that, as such, took part in proceedings relative to an award of a public contract and which may not obtain the said contract to act all together, as partner or in their own name, in order to file an appeal against the decision concerning the award of the said contract. The Court responded to these questions by means of a decision called Espace Trianon SA and Société wallonne de location-financement SA (Sofibail), dated 8 September 2005 (case C-129/04). ● By a decision dated 31 August 200617, the Council of State submitted questions (3) relative to the possible application of directive 92/50/EEC of the Council dated 18 June 1992 relative to coordination of procedures concerning conclusion of public services contracts, to a contract characterised as "concession domaniale" (State concession), when the said contract, independently of the grant by the public authority to the benefit of its co-contracting party of the exclusive right to exploit, for profit, advertising on the street fittings made available to the public authority, provides for execution by the co-contracting party of a certain number of services to the benefit of that authority (availability of the street fittings, of locations intended for communal display). However, the case (C-378/06) was struck off, the Council of State not having maintained its preliminary point of law, following the abandonment of proceedings by the applicant party. ● By a decision dated 24 October 200618, the Council of State submitted a preliminary point of law relative to the possible obligation, incumbent on the Court handling appeal proceedings, to guarantee the confidentiality and the right to respect for the business secrets contained in the dossiers communicated by the parties to the case, including by the awarding authority. The Court of justice responded to this by way of a decision Varec S.A., dated 14 February 2008 (case C-450/06). ● Finally, by an order dated 6 January 201519, the Council of State put questions (2) relative to the possible obligation to announce the evaluation methods and the weighting rules when the contract is awarded to the bidder whose bid is, from the viewpoint of the awarding authority, the most advantageous from the economic viewpoint. This case is docketed in the Court of Justice under No. C-6/15.

3.2. Is there a documentation service systematically analysing the CJEU decisions and

informing the members of the Supreme Administrative Court about the responses

to the preliminary points of law?

No.

16 Council of State, decision No. 128.507 dated 25 February 2004, S.A. ESPACE TRIANON and S.A. “SOFIBAIL”.

17 Council of State, decision No. 162.256 dated 31 August 2006, S.A. CLEAR CHANNEL BELGIUM.

18 Council of State, decision No. 164.028 dated 24 October 2006, S.A. VAREC.

19 Council of State, decision No. 229.723 dated 6 January 2015 (corrected by decision No. 230.602 dated 24 March 2015), NV TNS DIMARSO.


3.3. Does the Supreme Administrative Court quote the case-law of the CJEU in its

decisions, or does it make any material reference thereto?

Yes. The Council of State frequently refers to the decisions by the Court of Justice.

The decision called Lianakis (C.J.E.U., decision dated 24 January 2008, C-532/06) is probably the

one most often mentioned, both with respect to the requirement for transparency of the award

criteria and of their respective value, and as concerns the distinction between the selection

criteria and the award criteria. There are 39 explicit references to the Lianakis decision in the

Council of State’s decisions.

● Sometimes the Council of State reproduces, in extenso, the relevant extract from the decision,

from which it draws its conclusions. See, for instance: Council of State No. 183.809 dated 5 June 2008, NV SV INTERIOR PROJECTS

" Te dezen lijkt de opdracht toegewezen na een evaluatie, mede gesteund op criteria die niet uitdrukkelijk in het bestek zijn vermeld. De vraag of die werkwijze verenigbaar is met de aangehaalde bepalingen die opleggen “de” of “al” de gunningscriteria te vermelden in het bestek, is een vraag naar kwalificatie die gelet op de waarde van de betrokken opdracht die onbetwist het Europees drempelbedrag overschrijdt hier dan nog conform met de toepasselijke Europese rechtsnormen moet worden beantwoord. Bij dat onderzoek lijkt niet te kunnen worden voorbijgegaan aan het recente arrest van het Hof van Justitie van de Europese Gemeenschappen van 24 januari 2008 in de zaak C-532/06 inzake Emm. G. Lianakis AE. Daarin wordt voor recht verklaard : “Artikel 36, lid 2, van richtlijn 92/50/EEG van de Raad van 18 juni 1992 betreffende de coördinatie van de procedures voor het plaatsen van overheidsopdrachten voor dienstverlening, zoals gewijzigd bij richtlijn 97/52/EG van het Europees Parlement en de Raad van 13 oktober 1997, gelezen tegen de achtergrond van het beginsel van gelijke behandeling van de marktdeelnemers en van de daaruit voortvloeiende transparantieverplichting, verzet zich ertegen dat de aanbestedende dienst in het kader van een aanbestedingsprocedure achteraf wegingscoëfficiënten en subcriteria voor de in het bestek of in de aankondiging van de opdracht vermelde gunningscriteria vaststelt”. De conclusie lijkt aldus te moeten luiden dat het te dezen gehanteerde beoordelingssysteem, gebruik makend van niet in het bestek vastgelegde en achteraf vastgestelde criteria en wegingscoefficiënten, niet verenigbaar is met de in het middelonderdeel geschonden geachte artikelen 16 en 115, richtlijnconform geïnterpreteerd. Het middel is in die zin ernstig en volstaat om er de gevraagde schorsing op te steunen. […] ". See, for instance, Council of State decision No. 193.924 dated 8 June 2009, S.A. SECURITAS

TRANSPORT AVIATION SECURITY

"Whereas, with respect to the serious nature of the argument, in proceedings relative to conclusion

of a contract, the stages relative to the quality of the bidders, consideration of the regular nature of

the bids and of their comparison in the light of the award criterion or criteria are clearly distinct,

whether it be a question of traditional sectors or of special ones; more particularly it can be seen

from article 59, § 2, paragraph 1, of the royal decree dated 10 January 1996, mentioned above, that

"the awarding authority selects the candidates on accordance with the objective criteria and rules

that it has defined and which are available to the service providers that are interested"; it follows

that verification of the aptitude of the bidders and award of the contract are two distinct

operations, and that they are governed by different rules; that "one excludes, as ‘award criteria’,

criteria that are not aimed at identifying the bid that is the most advantageous one from the

economic viewpoint, but that are connected essentially with the judgement of the ability of the

bidders to perform the contract in question" (C.J.E.C., 24 January 2008, Lianakis et alii, C-532/06,

point 30); that the directives concerning public contacts prevent the awarding authority from


adopting, as " award criteria ", criteria that bear mainly on the experience of the bidders, on the

qualifications and equipment of their staffs, as well as on the means of such nature as to guarantee

proper execution of the contract in question".

● Sometimes, the Council of State paraphrases the teaching of the decision.

See, for instance: Council of State, decision No. 228.132 dated 29 July 2014, SPRL B.S.T.

REVISEURS D'ENTREPRISES c/STIB

"In its Lianakis decision, the Court of Justice of the European Union held that the choice of the

award criteria may bear only on criteria aimed at identifying the bid that is most advantageous

from the economic viewpoint and that this therefore excludes, as "award criteria", the ones that are

connected mainly with judging the ability of the bidders to execute the contract in question".

● Sometimes the Council of State synthesises the state of case-law of the Court of Justice. See, for instance: Council of State, decision No. 185.195 dated 7 July 2008, S.A. SOCIETE

LIEGEOISE DE MICRO-INFORMATIQUE, called COMPUTER LAND

"Whereas it can be seen from the case-law of the Court of Justice of the European Communities that

the notice obligations provided for in the applicable European Directives, read in the light of the

principle of equal treatment of economic operators and of the transparency obligation resulting

therefrom, prevent, within the framework of contract conclusion procedures, the awarding

authority from subsequently establishing weighting coefficients and sub-criteria for the award

criteria mentioned in the specifications or in the contract notice (C.J.E.C., 24 January 2008, C-

532/06); that is not the case here […];

Whereas it can also be seen from the decisions of the Court of Justice that when, in such a case, the

awarding authority determines, after the special specifications but before the opening of the bids,

weighting coefficients for the sub-criteria relative to the award, the above-mentioned directives

and the above-mentioned principles do not oppose such a procedure insofar as the said coefficients

do not lead to a distortion of the criteria of the special specifications that are the only ones known

to the bidders; but such a decision cannot thus modify the criteria relative to an award of the

contract defined in the specifications or in the contract notice, may not contain any elements that, if

they has been known at the time of preparation of the bids, could have influenced the said

preparation, and may not be adopted taking account of the elements that could have a

discriminatory effect vis-a-vis one of the bidders (C.J.E.C., 24 Nov. 2005, ATI EAC, C-331/04, pts 25

to 32); that in the event […];

Whereas the case-law of the Court of Justice does not indicate that the above-mentioned directives

in principle require a determination in advance, and in the special specifications, of the judgmental

elements relative to each of the award sub-criteria as well as their weighting coefficient; […]".

● Sometime the Council of State limits itself to a reference to the decision. See, for instance, Council of State, decision No. 217.013 dated 23 December 2011, NV CARE

" In het gunningverslag zijn de punten voor het tweede criterium over deze subcriteria verdeeld,

waarbij er, overeenkomstig het hiervoor vermelde artikel 115 van het koninklijk besluit van 8

januari 1996, van uitgegaan is dat ze alle vijf dezelfde waarde hebben en waarbij daaraan hetzelfde

relatief gewicht is toegekend. De Raad van State kan daar -conform de door verzoekster zelf ter

sprake gebrachte arresten van het Hof van Justitie inzake ATI EAC (nr. 32) en inzake Lianakis (nrs.

42 en 43)- geen bezwaar in zien nu die vaststelling van de weging geen wijziging brengt in de in het

bestek of in de aankondiging van de aanbesteding vastgelegde criteria, nu ze geen elementen bevat

die, indien bij de voorbereiding van de offertes bekend, die voorbereiding hadden kunnen


beïnvloeden, en nu ze niet is gekozen met in aanmerkingneming van elementen die discriminerend

kunnen werken jegens een van de inschrijvers ".

See, for instance, Council of State, decision No. 231.826 dated 30 June 2015, BVBA JOOST PEETERS ADVOCATENKANTOOR " Wat dit middelonderdeel betreft, dient erop te worden gewezen dat volgens rechtspraak van de Raad van State (onder meer arrest van 18 november 2014, nr. 229.188, cvba De Meuter & Corstjens), en eveneens volgens recente rechtspraak van het Hof van Justitie van de Europese Unie (arrest van 26 maart 2015, C-601/13, Ambisig) niet valt uit te sluiten dat in bepaalde gevallen, namelijk voor bepaalde diensten, de kwaliteit van het team, ervaring en referenties wel als gunningscriterium gebruikt mogen worden ".

4. Implementation of the appeal procedures mentioned in directive 89/665/EEC and

92/13/EEC

4.1. Can the Supreme Administrative Court (or a lower-ranking court) rule that a

public contract is ineffective and/or pronounce substitution or other sanctions

(pursuant to the directives 89/665/EEC or 92/13/EEC) ex officio or only as long as

it is asked to do so?

The Council of State does not hold jurisdiction for ruling that a public contract is ineffective

and/or for ordering substitution sanctions (either ex officio, or at the applicant’s request). This

power is held solely by the civil courts.

● The declaration of absence of effect may not be pronounced ex officio.

The law of 17 June 2013 lays down the principle that "except in the cases provided for in articles

13 and 17 to 20, the contract, once concluded, cannot be suspended or ruled to be ineffective by

the appeal court, whatever it may be".

The exceptions mentioned are important.

They concern the declaration of absence of effect.

First of all (article 13), "the suspension of execution of the award decision by the appeal court

entails ipso jure suspension of performance of the contract that might be concluded in violation

of [the obligation to observe a waiting period]". It is then up to the beneficiary of the suspension

decision (obtained from the Council of State or from a civil court, depending on the status of the

awarding authority) to file the motion for declaration of absence of effect in the civil court.

Then article 17 sets forth the situations in which the appeal court declares that a contract is

ineffective at the request of any interested person. In substance, that is the case: when the

contract is concluded without European notice (whereas such notice was mandatory); when a

contract is concluded "in force", without observance of the waiting period or without waiting for

the appeal court to make a decision concerning the application for a suspension or for

provisional measures (but only if a violation of the rules relative to public contracts has had the

effect of compromising the chances of a bidder to win the contract) ; or when the contract is

concluded on the basis of a framework agreement without all of the conditions being laid down

in the said framework agreement.

● The substitution sanctions are pronounced ex officio or at the request of an interested

person ".

They are pronounced ex officio if the appeal court applied to – properly – in connection with a

request for declaration of absence of effect finds that "overriding reasons of the general interest

require maintenance of the effects of the contract".


They may be pronounced at the request of an interested party that files an application to that

effect, particularly when the precise conditions under which a contract may be ineffective do not

exist.

4.2. Who may apply for a declaration of absence of effect? Has the case-law

represented by the CJEU decision dated 18 July 2007, Commission c/RFA, C-

503/04, been incorporated into national law?

The declaration of ineffectiveness may, according to article 17 of the law of 17 June 2013, be

requested by "any interested person", hence including the authority that must cease its non-

compliance with the rules of community law.

The parliamentary documents preceding the inclusion of this provision on the arsenal of appeals

in connection with public contracts clearly indicate that the intention was to take account of the

decision of the Court of Justice dated 18 July 2007:

"This article deals with the absence of effects of the contract. This mechanism is provided for in

article 2quinquies of directives 89/665/EEC and 92/13/EEC mentioned above, which is a leading

provision thereof, aimed at severely sanctioning certain violations of community law. According to

whereas 14 of directive 2007/66/EC modifying the above-mentioned directives, the absence of

effect is the most effective way of re-establishing competition and of creating new commercial

prospects for the businesses that have been illegally deprived of the possibility of taking part in the

procedure

The notion of “interested person” being entitled to request the absence of effect also relates to the

case of the authority that must put an end to the European shortcoming (see CJEC, decision dated

18 July 2007, case C-503/04, Commission of the European Communities. Federal Republic of

Germany). In addition, it may also be a question, for instance, of the regional authority acting within

the framework of supervision of an awarding authority"20.

4.3. In what proportion of cases does one apply the mechanism of the balance of

interests in order to avoid ordering provisional or suspension measures?

The balance of interests is enshrined in article 15 of the law of 17 June 2013 in these terms:

"The Appeal Court may, on its own initiative or at the request of one of the parties, take account of the likely consequences of suspension of execution and of the provisional measures for all interests that might be injured, as well as of the public interest, and it may decide not to authorise suspension of performance for the provisional measures when the negative consequences could outweigh their advantages."

The balance of interests is frequently called on, but it seldom leads to a rejection of the

application for a suspension. Since the mechanism of the balance of interests was introduced in

connection with public contracts21, the Council of State has called on it only twice in behalf of

maintenance of the act whose illegality had been established.

20 Legislative bill introducing a new book relative to motivation, information and appeals in the law of 24 December 1993 relative to public contracts and to certain contracts concerning work, supplies and services, presentation of the grounds, Doc. Parl. Ch. repr. 2009-2010, DOC 52 2276/001.

21 The balance of interests has sometimes been called on in pretorian fashion without any legal basis (see, in particular, Council of State No. 188.958, dated 18 December 2008, N.V. SANOFI PASTEUR MSD. In the event, the contract bore on supplying vaccines, and the Council of State found that in case of suspension,


In the first case, it was a question of a public contract relative to production, personalisation,

installation and distribution of drivers licenses in bank card format, for 38 communes. Council of State, decision No. 217.382 dated 19 January 2012, S.A. ZETES

"Article 65/15 of the law of 24 December 1993 allows the Council of State not to grant suspension

of execution of a decision when the probable negative consequences of such suspension for all of

the interests that might be injured as well as for the public interest could outweigh the advantages

that might result therefrom. In case of suspension of execution of the contested act, the communes

concerned could no longer grant drivers licences in bank card format. Furthermore it can be seen

from the explanations provided by the adverse party that several weeks would be required for

taking the steps enabling the communes to produce and again deliver drivers licences on paper, as

they did before conclusion of the contract dated 18 March 2010. The applicant does not produce

any elements that would demonstrate the erroneous nature of these explanations by the adverse

party so that the likelihood of such a delay cannot be ruled out. Some time would also be required

for the adverse party to award a new public contract relative to distribution of drivers' licences in

bank card format, by calling on competition.

During that period, the likely consequence of suspension of execution of the contested decision

would be an interruption of the public service relative to issuing drivers licences in those 38

communes. Such a consequence, impairing the continuity of the public service, would exceed the

advantage the applicant might derive from suspension of the contested decision by which the

adverse party awards the public contract in dispute for a duration limited to 9 months.

To be sure, the absence of suspension of execution of the contested decision could imply that the

public contract in dispute could produce effects going beyond the time strictly needed for

concluding a new contract with due observance of the rules relative to competition and to

guarantee the continuity of the public service. However, it is appropriate not to suspend its

execution, since such a suspension would very probably entail a temporary interruption of the

public service relative to issuing drivers licences in those 38 communes, as has already been

explained."

In the second case22, it was a question of "representation of the French community and

occupancy of the Belgian Giardini Pavilion at the time of the 2015 Venice Biennale".

Since the decisions of the civil courts are not published systematically, the statistics concerning

them are unknown.

4.4. Does national case-law make the balance of interests subject to particular

conditions?

The balance of interests may also be called on ex officio or at the request of one of the parties.

Hence theoretically it may be requested by the designated winning bidder, if it intervened in the

proceedings. However, the Council of State considers that it is up, in the first place, to the

authority to put forth elements justifying a refusal to grant suspension of an illegal decision.

It is incumbent on the adverse party, which requests a balance of interests, to demonstrate

imperative reasons relative to the general interest concretely justifying a decision not to grant a

suspension. Mere hypotheses or conjectures are insufficient. The adverse party must call on

there was a great risk that vaccinations could not be given on time. The mechanism was formally introduced into Belgium law, only for public contracts, by the law of 17 June 2013. It was then extended to take in all contentious proceedings relative to suspension in the Council of State, at the time of the 2014 reform.

22 Council of State, decision No. 228.195 of 13 August 2014, SZYMKOVICZ Charles.


elements that are concrete and established (by documents that it files). Even drawbacks that are

portrayed as serious must be established.

The loss of subsidies or the risk of cancellation of a loan are not considered as circumstances

justifying overturning the suspension of an illegal act.

A mere delay in continuation of the contract award procedure is also insufficient since the

continuity of the public service in not in danger. When the illegality that is noted does not make

it necessary to restart the entire award procedure ab initio, the Council of State finds that it is

possible to rework the act diligently, without incurring too much delay. If, on the other hand, the

illegality that is noted requires reworking the entire procedure ab initio, the Council of State

takes account of the possibility of unilaterally extending a contract in effect for the time required

for awarding the new contract.

One decision, among others, illustrates the restrictive and very concrete nature of the balance of

interests by the Council of State. Council of State, decision No. 231.878 of 7 July 2015, S.A. PFIZER

"Obviously the adverse party must be heard when it insists on the need for carrying out,

continuously, the assignments relative to the vaccination policy, in the light of the importance of the

needs that execution of the said missions is called on the satisfy. This concern is all the more

striking the closer the date of application of the contract in dispute.

However one cannot accept the idea that the delay in awarding the contract in dispute in case of

suspension of execution of a contested decision, however bothersome that may be, would be

sufficient to justify a refusal to decide on this matter.

Such a delay, which is the inevitable consequence of a suspension order based on article 15 of the

law of 17 June 2013 relative to motivation, information and appeals in connection with public

contracts and certain contracts relative to work, supplies and services, cannot be enough in itself to

justify rejection targeted by the judge’s decision, unless one is willing to paralyse the suspension

procedure organised by legislators in application of article 2 of directive 2007/66/EC of the

European Parliament and of the Council dated 11 December 2007.

No doubt, the argument, recognised as a serious one, appears to be of such nature as to force the

adverse party to again start the procedure for contract award ab initio, without any guarantee that

the said procedure can wind up in contract conclusion before 31 August 2015, the date on which

execution of the contract now in effect is to end.

It remains true all the same that if need be, it would be up to the awarding authority to decide on

extension of execution of the contract having an analogous purpose, execution of which is now

provided by the applicant, this pursuant to the option it is acknowledged as holding under article 7

of the royal decree of 26 September 1996 establishing the general rules relative to execution of

public contracts and of public works concessions, under the terms of which "whatever the

procedure for determination of the prices may be, the awarding authority is then entitled to

unilaterally make modifications in the initial contract, insofar as that does not modify the object,

and in exchange for fair compensation, if appropriate". Use of this option in this particular case

would not be tantamount to getting around the requirements of a call on competition for a new

contract by means of an improper call on urgency and unpredictable circumstances, but would

make it possible to extend performance of the contract now in effect in order to guarantee the

continuity of service pending finalisation of the new procedure.

Furthermore the applicant referred, in pleadings, to elements guaranteeing, in its opinion, that it

has the stock required for continued delivery of the PREVENART 13 vaccine for several months,

and that it is in a position to constitute new stocks in the meantime. There is no protest as to the

accuracy of these data and concerning its ability to continue performance of the contract now in

effect during the period required for carrying out the new award procedure.


Under those circumstances, the adverse party fails to show that the difficulties that would result

from a postponement of the date of the start of execution of the contract in dispute could be

insurmountable to the point of proving that it would be an obstacle to suspension of performance

of execution of the contested decision. Thus it does not show that the negative consequences of the

suspension that would be ordered under those circumstances could prevail over its advantages and

constitute an obstacle in that respect to suspension of execution of the contested decision".

4.5. Directives 89/665/EEC and 92/13/EEC provide that when a court of initial

jurisdiction, independent of the awarding authority, is applied to with a protested

bearing on the decision to award the contract, the Member States are to make sure

that the awarding authority cannot conclude the contract before the court hearing

the recourse rules either on the request for provisional measures or on the

recourse itself.

Is it possible to have this automatize suspension lifted by your court? If so, under

what conditions?

No.

5. Division of award criteria into award sub-criteria, weighting of the award sub-criteria,

judgmental elements and method of rating bids (case-law references: CJEU, C331/04

ATI EAC and Others ; CJUE, 24 January 2008, Lianakis, C-532/06)

5.1. How does your court apply this case-law in daily practice?

As indicated in the response to question 3.3., the "ATI EAC" and "Lianakis" case-law is called on

very frequently by applicants. The Council of State applies it almost every day.

5.2. Do case-law or legislation accept the use of sub-criteria that are not explicitly

indicated, and on the basis of what conditions? Do case-law or legislation define

the sub-criteria? Do case-law or legislation make a distinction between sub-

criteria and judgmental elements?

Article 25 of the law of 15 June 2006 relative to public contracts and to certain contracts relative to work, supplies and services provides, with respect to the tender procedure23:

"when the awarding authority decides to conclude the contract by means of a call for tenders, the contract must be awarded to the bidder that has put in a regular bid that is economically the most advantageous from the viewpoint of the awarding authority, taking the award criteria into account. The award criteria must be indicated in the contract notice or in another contract document. The said criteria must be connected with the object of the contract and make an objective comparison of the bids possible on the basis of a value judgement. The criteria are, for instance, the quality, the price, the technical value, the aesthetic and functional nature, and environmental characteristics, considerations of a social order, the cost of use, the profitability, after-sale service and technical assistance, the date of delivery, and the time for making delivery or execution, the guarantees concerning spare parts and supply security. For public contracts reaching the amount set for European notice, the awarding powers specifies the weighting relative to each of the award criteria, and that weighting may possibly be expressed in terms of a range that must be characterised by an appropriate maximum spread. If such weighting is not possible for demonstrable reasons, the criteria are to be mentioned in decreasing order of importance.

23 This article is made applicable to the special sectors by article 55 of the same law.


With respect to public contracts not reaching the above-mentioned amount, the awarding authority

is to specify either their relative weighting as provided for in the foregoing paragraph or their

decreasing order of importance. Or failing that, the award criteria have the same value".

Some corresponding regulatory provisions – except for a few nuances – exist for the negotiated procedure24 and for the competitive dialogue25.

The "sub-criteria" and the "judgmental elements" are therefore not defined by law.

Case-law distinguishes the (sub-)criteria relative to the award, the evaluation methods and the

judgmental elements.

● The award (sub-) criteria are evaluation standards, touchstones, characteristics in the light of

which the bids are measured. This is a question of pre-set data with which the bids are more or

less systematically compared, in connection with the evaluation.

● The evaluation method concerns the way in which the administrative authority analyses and

judges the evaluation elements at the time of evaluating the bids so as to come up with scores

and a classification in accordance with those scores. See, for instance: Council of State, decision No. 228.133 dated 29 July 2014, BVBA BUCCINUM

" Een gunningscriterium of subcriterium is een beoordelingsnorm, een toetssteen, een kenmerk

waaraan de offertes worden afgemeten. Met de weging ervan wordt de weergave bedoeld van het

relatief gewicht dat wordt toegekend aan de diverse gunningscriteria, in de procedated res waarin

deze worden gehanteerd. De beoordelingsmethode betreft dan weer de manier waarop de

aanbestedende overheid bij de evaluatie van de offertes de beoordelingselementen analyseert en

waardeert teneinde tot scores en rangschikkingen volgens die scores te komen ".

● The judgmental elements are elements – favourable or less favourable – that are proper to

each bid, which emerge at the time of evaluation of the bids and which are used to justify the

scores assigned for an award criterion.. See, for instance: Council of State, decision No. 226.499 dated 20 February 2014 CVBA AXIS

ARCHITECTEN & INGENIEURS

" Een onderscheid moet worden gemaakt tussen het toevoegen van nieuwe criteria of subcriteria,

dan wel het opgeven van motieven waarom de offerte van de ene inschrijver beter wordt bevonden

dan de offerte van de andere wat betreft de visie en het schetsontwerp ".

5.3. What consequence does case-law draw from the use of sub-criteria that are not

explicitly indicated? Same question for the judgmental elements.

● The award (sub-)criteria are subject to the principles of equality and transparency. The

lessons of the Lianakis precedent apply fully thereto. Hence in principle they must be indicated,

in the same way as the criteria.

However, the Council of State accepts an indication of the sub-criteria by reference to other

contract documents. Thus, for instance, the sub-criteria of the award criterion relative to

"technical quality" may be announced by means of a reference to the technical specifications, as

24 Article 107 of the royal decree of 15 July 2011 relative to conclusion of public contracts in the traditional sectors and article 106 of the royal decree of 12 July 2011 relative to conclusion of public contracts in the special sectors.

25 Article 111, § 2, of the said royal decree for the competitive dialogue.


long as the reference is clear and the bidders can therefore reasonably expect to have their bid

compared with those specifications.

Moreover there are decisions accepting the application of sub-criteria that had not been

explicitly announced on the basis of strict observance of the conditions formulated by the Court

in its ATI AEC, i.e.:

- no modification of the criteria relative to the award of the contract defined in the specifications

or in the contract notice;

- no elements present that, if they had been known at the time of bid preparation, could have

influenced the said preparation;

- they have not been adopted by taking account of the elements that could have a discriminatory

effect vis-a-vis one of the bidders.

To sum up, the use of unannounced sub-criteria would be admissible if the said sub-criteria

clearly refer to the criterion – announced – to which they relate and they therefore can be

reasonably anticipated by the bidders, if their weighting does not have the effect of distorting

the criterion - as it has been announced – and if they have not been adopted after opening of the

bids – with the risk that they would be chosen for the purpose of favouring one or another

bidder.

See for instance EC, Council of State, decisions Nos. 228.988, 229.009, 229.075, 229.109, 229.174, 229.175, 229.176, 229.225 and 229.226, issued during the month of October and November 2014. "When an awarding authority specifies an award criterion, for instance, in "headings" or "sub-divisions" that are not announced in the special specifications or in another contract document, the question that first arises is determining whether they consist in "mere" "judgmental elements" or actually in award sub-criteria. When a "heading" of an award criterion is applied systematically in the analysis of all bids and in the same way a score is indicated for each bid in the light of the said "heading", the latter must be characterised as an award sub-criterion. The use of such award sub-criteria must occur, as recalled above, with due observance of the principles of equality and of transparency. That is why the legality is accepted only if they comply with three conditions. First of all, they may not modify the award criteria defined in the special specifications or in the contract documents. In the second place, they may not contain any elements that, if they had been known at the time of bid preparation, could have influenced the said preparation. And finally, they may not have been adopted by taking into account elements that could have a discriminatory effect vis-a-vis one of the bidders."

Finally, the announced sub-criteria must all be applied. It is not possible to neutralise some of

them a posteriori. See, for instance: Council of State, decision No. 228.133 dated 29 July 2014, BVBA BUCCINUM

" Naast de vereisten gesteld in artikel 25 van de voormelde wet van 15 juni 2006 vloeit reeds uit het

beginsel patere legem quam ipse fecisti voort dat de inhoudelijke beoordeling van de offertes alleen

mag gebeuren aan de hand van de gunningscriteria die in het bestek of de aankondiging van de

opdracht zijn opgenomen, zodat geen andere gunningscriteria bij de beoordeling mogen worden

betrokken, en de offertes moeten worden beoordeeld op grond van alle in het bestek vermelde

gunningscriteria, subcriteria inbegrepen ".

● The judgmental elements are not, it is assumed, announced in the contract documents, since

they appear only on the occasion of analysis of the bids, as constituting merits that are proper to

one or another of them.

In practice, in reading the award decision, it is not always easy to distinguish between award

sub-criteria, applied without having been announced, and judgmental elements brought out at


the time of analysis of the bids and indicated in the formal grounds for justifying the judgment

made of each bid in the light of each criterion

5.4. Do case-law or national legislation require advance communication of the method

to be used in evaluation of the bids?

No. But a preliminary point of law has recently been brought up in this connection (cf. above).

On the other hand, if a method is announced, needless to say the awarding authority must

observe it.

6. Horizontal internal cooperation [decisions by the CJEU C-15/13, Technische

Universität Hamburg-Harburg; C-386/11, Piepenbrock Dienstleistungen; C-159/11,

Azienda Sanitaria Locale di Lecce and C-480/06, Commission vs. Germany (grand

chamber)].

6.1. Does your Supreme Administrative Court encounter any difficulties connected

with the contracts concluded in connection with cooperation procedures?

The question targets two distinct hypotheses, synthesised in these terms by the Court of Justice in its decision dated 13 June 2013, Piepenbrock Dienstleistungen GmbH & Co. KG (C-386/11).

The fact is that, according to the Court, there are " two types of contracts ", that, even though concluded by public entities, all the same do not fall within the field of application of Union law in the field of public contracts".

" 34 We are referring, in the first place, to contracts concluded by a public entity with a person legally distinct from it when, simultaneously, the said entity exercises control over the said person analogous to the control that it exercises over its own services and the said person carries on the bulk of his activities with the entities or entities that hold it (see, along these lines, the above-mentioned Teckal decisions, point 50, as well as Ordine degli Ingegneri della Provincia di Lecce e.a., point 32). […]

36 We are referring, in the second place, to contracts that institute cooperation between public entities for the purpose of seeing to execution of a public service mission that is common to them (see the decision relative to Ordine degli Ingegneri della Provincia di Lecce e.a., mentioned above, point 34).

37 In this case, the rules of Union law concerning public contracts are not applicable insofar as such contracts are concluded solely by public entities, without participation by a private party, no private service provider is placed in a privileged position by comparison with its competitors, and the cooperation that they institute is governed solely by considerations and demands that are proper to the pursuit of objectives of public interest (decision Ordine degli Ingegneri della Provincia di Lecce e.a., mentioned above, point 35).

38 All of the above-mentioned criteria are cumulative, so that a contract between public entities may not fall outside the field of application of Union law in connection with public contracts in connection with this exception unless the contract recording the said agreement satisfies all of these criteria (see, along these lines, the decision Ordine degli Ingegneri della Provincia di Lecce e.a., mentioned above, point 36)."

● The Council of State has not yet been called on to consider proceedings in which contractual

horizontal cooperation (without creation of a separate legal entity) was called on.


● On the other hand, the Council of State has been called on to deal with several cases in which

the "in-house" case-law was used to justify the absence of a call on competition for services,

within the framework of institutionalised partnerships.

Only three decisions are really worth attention: decision No. 173.079 dated 3 July 2007, S.A. CODITEL BRABANT (which, however, bore on the grant of a service concession); decision

No. 221.540 dated 27 November 2012, N.V. CLEANLEASEFORTEX, and decision No. 230.703,

dated 31 March 2015, N.V. CLEANLEASE.

● The first case concerned a cooperative company grouping solely local authorities (communes

and associations of communes) with a view to transferring to it – without any call on

competition – management of their cable television network.

The fact is that the Council of State encountered difficulties in application of the "in-house" case-

law, which led it to submit a preliminary point of law to the Court of Justice.

Council of State, decision No. 173.079 dated 3 July 2007, S.A. CODITEL BRABANT

"Whereas in the light of these elements, the Council of State is inclined to hold that the first

argument is justified; however, it considers that it has not bee sufficiently enlightened by the case-

law of the Court of Justice for making a definitive decision concerning the existence of an exception

to the above-mentioned rules and principles of primary community law in this particular case, that

before ruling on the argument, with an eye on unity on application of community law, it is

appropriate to submit the preliminary point of law appearing in the wording of the present

decision to the Court of Justice of the European Communities."

The question was the following:

"May a commune, without calling on competition, affiliate itself with a cooperative company

grouping solely other communes and associations of communes (what is called pure

intracommunal) with a view to transferring management of its cable television network to it,

knowing that the company carries on the bulk of its activities with its affiliates alone and in their

defence, and that the decisions related to those activities are made by the Board of Directors and

the sector boards within the limits of the delegations that the Board of Directors grants to them,

statutory organs that consist of representatives of the public authorities and which rule by a

majority of those representative ? Can the Control exercised in this way, by way of the statutory

organs, by all of the co-operators, or by part of them in the case of operating sectors or sub-sectors,

over the decisions of the cooperative company be considered as enabling them to exercise control

over the company analogous to the type exercised over their own services?

Must this mastery and this control, to be characterised as analogous, be exercised individually by

each affiliated member, or is it enough for them to be exercised by the majority of the affiliated

members?"

● The other two decisions concern the membership, of the Public Centre for Social Action of

Dendermonde (first of all) and of the Public Centre for Social Action of Ostende (subsequently)

in a non-profit association, initially established by the Public Centre for Social Action of Antwerp

to handle - without any call on competition – rental and processing of the linens of the

institutions managed by its members (rest homes, hospitals, …).

In the two decisions, the very long and careful examination made – on an extremely urgent

basis26 (!) – by the "auditorat", followed by the Council of State, bears witness to the sufficient

complexity of concrete implementation of the criteria set forth by the Court of Justice and

specified in the course of its decisions.

26 Without any possibility of submitting a preliminary point of law to the Court of Justice.


Each of the two conditions (analogous control and essential activity) has raised difficulties in the

event. On one hand, the entity in question (CLOVA) had a hospital institution under private law

among its members, not operating for profit. On the other hand, the articles of association of the

entity did not explicitly rule out the possibility that it could offer its services to third parties.

6.2. How, concretely speaking, does the examination of the condition relative to

analogous control take place?

The analogous control condition concerns institutionalised cooperation.

● In the Coditel case, the Council of State had provisionally concluded that the conditions of the

Teckal precedent were satisfied, before putting its preliminary points of law to the Court of

Justice.

The Court confirmed this initial analysis, since it responded as follows:

1) Articles 43 EC and 49 EC, the principles of equality and non-discrimination on the grounds of nationality as well as the obligation to observe transparency resulting therefrom do not prevent a public authority from awarding, without any call on competition, a concession in connection with public services to an intracommunal cooperative company of which all of the affiliates are public authorities, as long as the said public authorities exercise control over the said company analogous to the type that they exercise over their own services and the said company does the bulk of its business with the said public authorities.

2) Subject to verification by the court to which the case is referred of the facts as concerns the extent of autonomy enjoyed by the company in question, in circumstances like the ones of the case in connection with the main issue, in which the decision relative to the activities of an intracommunal cooperative company held solely by public authorities are made by the said company’s statutory organs consisting of representatives of the affiliated public authorities, the control exercised over the said decisions by the said public authorities may be considered as allowing those authorities to exercise control thereof analogous to the kind that they exercise over their own services.

3) In case a public authority affiliates itself with an intracomunnal cooperative company all of the affiliates of which are public authorities, with a view to transferring management of a public service to it, the control that the authorities affiliated with the said company exercise over that company, to be characterised as analogous to the control that they exercise over their own services, may be exercised jointly by the said authorities, ruling by a majority if appropriate.

The case ended when the applicant party dropped proceedings.

● In the two cases filed against "CLOVA", the junior officers recalls, in a very precise way, the case-law of the Court of Justice concerning the condition of "analogous control", including developments in connection with it and its nuances.

He then goes beyond the apparent obvious fact that the condition of analogous control is not satisfied, solely because of the presence of a legal entity under private law (non-profit). In particular, in the second case, the junior officer bases himself on the decision of 19 June 2014, Centro Hospitalar de Setúbal EPE, Serviço de Utilização Comum dos Hospitais (SUCH) (C-574/12),


by which the Court of Justice contrasts "the private members " of the entity, not with the public persons, but rather with the " awarding authorities" that are members of the entity27.

Carefully examining the nature of the "private" member of CLOVA, the junior officer concludes that neither its form under private law nor the fact that it is not a question of an administrative authority in the meaning of the coordinated laws concerning the Council of State, rules out the conclusion that it must be considered as an "awarding authority".

In the final analysis, the Council of State concludes, on the basis of the arguments put forth by the applicant party, that the latter did not manage to show that the conditions for application of the Teckal precedent were not satisfied.

7. The confidentiality of the bids on the occasion of the jurisdictional control (case-law

references: CJEU, 14 February 2008, Varec, C-450/06)

7.1. Is the confidentiality of documents called on frequently in the contentious

proceedings relative to public contracts with which you deal?

Yes.

The applicants and the voluntary intervenors freely constitute28 the dossier of documents that

they file in support of their application. When they file their bid, the bidders – applicants or

intervenors in the proceedings – most often call on its total or partial confidentiality.

The awarding authorities must file a complete administrative dossier, but they may call on the

confidentiality of certain documents. The confidentiality of the bids is systematically called on.

The same applies, in particular, to letters exchanged between the awarding authority and the

bidders, for instance, in connection with the check on prices, or appendices to the analysis

report relative to the bids referring to unit prices.

7.2. How do national legislation or case-law reconcile the confidentiality and the

grounds of the decisions made by the awarding authorities and by the courts?

● The law of 17 June 2013 relative to the statement of reasons, to information and to appeals in connection with public procurement and certain contracts relative to work, supplies and services requires the awarding authority to establish a decision giving grounds: 1° when it decides to resort to a negotiated procedure without publicity; 2° when it decides to call on a negotiated procedure with publicity in the traditional sectors; 3° when it decides to resort to a competitive dialogue; 4° when it decides on qualification or on withdrawal of qualification within the framework of a qualification system; 5° when it decides on selection of candidates when the procedure includes an initial phase implying the filing of participation requests; 6 when it decides, within the framework of a competitive dialogue, to declare that the dialogue has ended; 7° when it decides, within the framework of a system of dynamic acquisition, not to select a participant or to reject a participant whose indicative bid does not conform to the contract document; 8° when it awards a contract, whatever the procedure may be; 9° when it waives conclusion of the contract and, if the case arises, decides to launch a new one.

27 Whereas 39: «the private members of the SUCH pursue interests and purposes that, however appreciable they may be from a social viewpoint, are of a nature differing from the nature of the public interest objectives pursued by the awarding authorities that are, at the same time, members of the SUCH».

28 Subject to documents required under penalty of non-listing of the request (a copy of the document attacked, a copy of the coordinated articles of association for the legal entities…).


The same law lists the elements that must be contained in the grounds relative to each type of decision. Thus, for instance, the award decision giving grounds must include: the names of the bidders whose bid has been considered irregular and the legal and factual grounds for their eviction, it being understood that "the said grounds relate in particular to the abnormal nature of the prices and, if the case arises, to the finding of non-equivalence of the proposed solutions in the light of the technical specifications or their non-satisfaction with respect to performance levels or to functional demands as provided for", as well as "the names of the chosen bidders or of the participant(s) chosen in the framework agreement and of the participants and bidders whose regular bid has not been chosen and the legal and factual grounds for the decisions relative thereto, including the characteristics and the advantages relative to the adopted bid". Hence certain grounds could be covered by the confidentiality or secrecy of the cases. ● In practice, the first way of guaranteeing a balance between the grounds of the decisions and the confidentiality of certain information consists, when this is possible, in wording the grounds in such a way as to sufficiently reveal the reasoning followed by the authority (for instance, in connection with control of the prices), without detailing the elements, extracted from the bids but underlined as reasoning (for instance, the amounts of the unit prices involved).

See, for instance: Council of State, decision No. 227.056 dated 7 April 2014, NV MOURIK " Hoewel in vele gevallen een samenvatting als inhoudelijke motivering lijkt te kunnen volstaan en aldated s wordt vermeden dat vertrouwelijke bedrijfsinformatie op zichzelf moet worden onthuld in het kader van de motivering van bestuurshandelingen, ontbreekt te dezen echter ook dergelijke samenvatting. Aldated s lijkt de verzoekende partij niet in de mogelijkheid om de gedane beoordeling op haar waarde te schatten ".

In this case, reasons that are expressed succinctly may be considered sufficient if they are confirmed by the documents (confidential) contained in the administrative file. ● Moreover the law of 17 June 2013 distinguishes the scope of the information to be communicated according to the addressees of the communication. Thus the awarding authority must communicate: 1° to any unselected bidder, the reasons for its non-selection, extracts from the decision giving reasons; 2° to any bidder whose bid has been considered irregular, the reasons for its eviction, extracts from the decision giving reasons; 3° to any bidder whose bid has not been selected and to the accepted bidder, the decision giving grounds. Thus the information transmitted to the unselected candidates and to the irregular bidders does not go beyond whatever is useful for them in order to understand the decision concerning them and for considering whether it is opportune to file an appeal against the said decision. This represent a second means for guaranteeing a certain balance between the grounds of the decisions and the confidentiality of business secrets. ● More generally, that same law provides, in article 10, § 1er, that "certain types of information do not have to be communicated when "disclosure thereof would constitute an obstacle to application of a law, would be contrary to the public interest, would harm the legitimate commercial interests of public or private companies, or could damage their competition between companies". It seems possible to deduce from this that the decision giving grounds may be communicated in an incomplete way when it includes grounds "disclosure of which would constitute an obstacle to application of a law, would be contrary to the public interest, would harm the legitimate commercial interests of public or private companies, or could damage their competition between companies".


7.3. Is the issue of access to confidential documents during the jurisdictional phase

settled by law in your country? Is it s question of general rules or of special rules

for public contracts?

● The law of 17 June 2013 relative to grounding, information and appeals in the fields of public contracts and of certain contracts relative to work, supplies and services provides as follows in article 26:

"The appeal court must guarantee the confidentiality and the right to respect for business secrets with respect to the information contained in the dossiers communicated to it by the parties to the case, particularly by the awarding authority, which must file the entire dossier, while being able, itself, to know such information and to take it into account. It up to the said court to decide to what extent and pursuant to what procedures it is appropriate to guarantee the confidentiality and the secrecy of the said information, in the light of the requirements of effective legal protection and respect for the rights of the defence of the parties to the dispute so that the procedure, as a whole, respects the right to a fair trial".

Hence this represents a particular rule for public contracts.

7.4. Is it the national judge who rules on the confidentiality of the documents? Must he

consult a particular court in this connection? What criteria are used by case-law to

allow or reject access to documents indicated as confidential? Is there is a

difference depending on whether the contentious proceedings are urgent or not?

The court applied to in connection with the appeal rules itself on the applications relative to

confidentiality of the documents. When confidentiality is requested by a party, it may be lifted

only by a decision.

● In an extremely urgent case, the Council of State maintains in principle, pending a decision on

the merits, the confidentiality requested by one of the parties29.

In numerous decisions, the Council of State specifies that lifting the confidentiality of the

documents does not seem necessary at this stage in the proceedings. See, for instance: Council of State, decision No. 231.051 dated 29 April 2015, S.A. PHONECOM

"The applicant requests maintenance of the confidentiality of its application document produced in

support of the request and identified as being exhibit 5 in its dossier of documents.

The adverse party also files, on a confidential basis, the applications of the various candidates, the

correspondence exchanged with them concerning their applications, as well as the documents

relative to execution of the current contract (exhibits 4.a, 4.b, 4.c, 10, 11 and 17 to 38 of the

administrative file).

Since disclosure of the said documents is not, at this stage, required for settlement of the dispute, it

is appropriate to provisionally maintain the confidentiality thereof".

When the confidentiality of certain documents is explicitly disputed by a party, the Council of

State considers the request, displaying a prudent attitude. It considers it undesirable to lift

confidentiality of documents in connection with extremely urgent proceedings – hence without a

thorough examination – because of the risk of substantial and irreversible consequences for the

business secretes of the bidders concerned. See, for instance: Council of State, decision No. 227.056 of 7 April 2014, NV MOURIK

29 However, see Council of State, decision No. 231.922, of 9 July 2015, BV SECURITY HANDCUFFS NETHERLANDS.


" In de huidige stand van het geding lijkt op het eerste gezicht te mogen worden aangenomen dat de

prijsverantwoordingen vertrouwelijke informatie kunnen bevatten, waarvan de openbaarmaking

de zakengeheimen van de overige inschrijvers kan schaden.

Daarenboven lijkt het hoe dan ook niet raadzaam om reeds in een procedated re bij uiterst

dringende noodzakelijkheid – en dated s zonder diepgaand onderzoek – de vertrouwelijkheid te

lichten, wegens de dreiging daardoor ingrijpende en niet omkeerbare gevolgen voor het

zakengeheim van de betrokken inschrijver te bewerkstelligen ".

When it concludes that it should suspend execution of the contested act, the Council of State

frequently explains the need for maintaining the confidentiality of certain documents (the bids,

in particular) by the concern to avoid compromising healthy competition among the companies,

particularly if the award procedure must be relaunched (and new bids must be filed).

However, it sometimes happens that the confidentiality of a document is lifted " en suspension ",

particularly if the party concerned explicitly accepts this (if appropriate, in response to the

invitation by the junior officer responsible for proceedings the matter).

● In connection with cancellation, the Council of State may lift the confidentiality of certain

documents by an interlocutory decision, following proceedings with due representation of all

parties on this precise point.

The request for lifting confidentiality must be argued. The Council of State considers the need for

lifting the confidentiality of the documents to guarantee a fair trial and " balances " it against the

importance of the alleged secret.

The Council of State has already lifted the confidentiality of the documents filed on a confidential

basis by the awarding authority and reopens arguments in order to allow the applicant party to

reformulate its arguments or to put forth new arguments after having familiarised itself, in

particular, with the bidder’s bid30.

7.5. When documents are considered confidential, how is the right to a fair trial

organised?

● The junior officer responsible for processing the case and the member(s) of the seat are aware

of all of the documents. Hence they consider the arguments by being familiar with the

confidential documents. See, for instance: Council of State, decision No. 227.056 dated 7 April 2014, NV MOURIK

" Aangezien te dezen de prijsverantwoordingen, waarvoor de vertrouwelijke behandeling wordt

gevraagd, volledig werden meegedeeld aan de Raad van State, kan de Raad voorts zelf deze

prijsverantwoordingen wel in zijn beoordeling betrekken ".

● In fact, the processing is more focused when the documents that are relevant to consideration

of the arguments are covered by confidentiality. In particular, the argument would be examined

with a certain benevolence when it appears that the confidentiality of certain documents has

prevented the applicant party from formulating it with the precision that is required in principle. See, for instance: Council of State No. 227.668 dated 11 June 2014, S.C.R.L. GLOBAL DESIGN,

PROJECT AND FACILITY MANAGEMENT

"In these particular circumstances, in which the applicant did not enjoy access to the bid

submitted by the company A.O.S. STUDLEY, the second argument calls for a benevolent

interpretation in that it points to an error in the grounds and denounces – under the terms

30 See for instance: Council of State, decision No. 226.755 of 13 March 2014, NV ACLAGRO and Council of State, decision No. 231.122 of 5 May 2015, NV ACLAGRO.


of its development – an inaccuracy in fact and in law of the grounds called on. It must be

read as aimed at a lack of recognition of the general principle to the effect that any

administrative act must be based on exact, relevant and admissible grounds, in fact as well

as in law".

For the same reason, the applicant cannot be criticised for not having specified in greater

detail the comments that could be inspired by the grounds set forth in the contested

document relative to the bid of its competitor, or the provisions and principles that were

said to have been disregarded by the adverse party in the analysis of the bids and in the

light of which one of the grounds would be inadmissible in law.

● The legal requirement for formal grounds for unilateral administrative acts (particularly in

connection with public contracts) also constitutes a powerful counterweight to the confidential

nature of certain documents.

If the confidentiality of documents in the administrative dossier prevents the applicant party

from obtaining precise knowledge of the factual grounds for the contested act, the grounds

expressed in the document must enable it to sufficiently understand the reasoning followed by

the awarding authorities. Failing that, an argument based on violation of the obligation to

provide formal grounds for administrative acts will have good chances of being considered

appropriate, justifying cancellation and, if appropriate, suspension of the contested act.

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